Guest v. Mannenbach

                                      430

  Argued and submitted October 28, affirmed December 29, 2022, petition for
                review denied March 30, 2023 (

)


                          Gilbert GUEST,
                        Plaintiff-Respondent,
                                   v.
                   Christopher MANNENBACH,
                             Defendant,
                                  and
                       John MANNENBACH
                      and Molly Mannenbach,
                       Garnishees-Appellants.
                  Multnomah County Circuit Court
                        20CV46388; A176318
                                   

    Writs of garnishment were delivered to garnishees, who are husband and
wife, at their home address, by certified mail, return receipt requested. Someone
other than garnishees signed for the delivery. The trial court entered a default
order and supplemental judgment against garnishees after they failed to respond
to the writs and to two subsequent court orders. Garnishees moved to set aside
the judgment under ORCP 71 B(1)(d), arguing that it was void because the writs
were not “delivered” to them within the meaning of ORS 18.652(1). ORS 18.652(1)
provides that a writ of garnishment may be delivered to a garnishee by personal
service or by “certified mail, return receipt requested,” and further provides that
delivery is effective “upon receipt of the writ by the garnishee.” Held: The trial
court did not err by denying garnishees’ motion to set aside the judgment as
void. As a matter of statutory construction, ORS 18.652(1) permits a writ of gar-
nishment to be delivered by certified mail, return receipt requested. It does not
impose a restricted-delivery requirement or otherwise require the garnishee to
personally sign the delivery receipt, nor is the garnishor required to prove actual
receipt.
    Affirmed.



    Stephen K. Bushong, Judge. (Supplemental Judgment)
    Thomas M. Ryan, Judge. (Order)
  George W. Kelly argued the cause and filed the briefs for
appellants.
   Troy G. Sexton argued the cause for respondent. Also on
the brief was Motschenbacher & Blattner LLP.
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   Before James, Presiding Judge, and Aoyagi, Judge, and
Joyce, Judge.
  AOYAGI, J.
  Affirmed.
432                                    Guest v. Mannenbach

        AOYAGI, J.
         This appeal arises out of a default judgment entered
against garnishees John and Molly Mannenbach. Plaintiff
arranged for the postal service to deliver two writs of gar-
nishment to garnishees at their home address, by certified
mail, return receipt requested. Plaintiff received return
receipts confirming delivery. Eventually, the trial court
entered a default order and supplemental judgment against
garnishees. Garnishees moved to set aside the judgment
under ORCP 71 B(1)(d), arguing that the writs were never
“delivered” as required by ORS 18.652(1), because some-
one other than garnishees signed for the certified mail and
garnishees never received it, and that the judgment was
therefore void. The court denied the motion. Garnishees
appeal. As a matter of statutory construction, we conclude
that ORS 18.652(1) allows for delivery of a writ of garnish-
ment by certified mail, return receipt requested; that the
statute requires only that the receipt be returned signed,
not that it be returned signed by the garnishee personally;
and that actual receipt is not required for effective delivery.
Accordingly, we affirm.
                           FACTS
        We state the facts in accordance with the standard
stated in Union Lumber Co. v. Miller, 

, 

 (2017).
        Plaintiff had a business relationship with defendant
Chris Mannenbach. A dispute arose between them, which
ultimately led to plaintiff obtaining a substantial money
judgment against defendant.
         Seeking to collect on the judgment, plaintiff began
garnishment proceedings against garnishees, who are defen-
dant’s parents, based on an alleged transfer of funds between
them and defendant. On February 8, 2021, plaintiff sent two
writs of garnishment to garnishees (one addressed to each
of them) at their residential address. Plaintiff sent the writs
through the United States Postal Service (USPS), by cer-
tified mail, return receipt requested. Plaintiff received the
return receipts on February 11, 2021. As tracked by USPS,
the writs were delivered on February 10, 2021, at 12:42 p.m.
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          Garnishees did not respond to the writs of garnish-
ment. Garnishees also did not respond to subsequent court
orders requiring garnishees to appear for examination on
April 15, 2021—see ORS 18.778(1) (“If a garnishee fails to
provide a garnishee response within the time required by
law * * * the garnishee may be ordered by the court to appear
at a specified time and place for an examination.”)—and
to appear on May 20, 2021, for the setting of a show-cause
hearing—see 

 (“In addition to or in lieu of an order to
appear for examination, the court may order the garnishee
to appear for a hearing under ORS 18.782 to determine
whether the garnishee should be held liable for the amount
specified in ORS 18.775.”).
        Plaintiff moved for default. The court granted the
motion, based on garnishees having been served with writs
of garnishment and ordered to appear and having failed to
appear or respond. The court entered a default order and a
supplemental judgment against garnishees, which includes
a substantial money award to plaintiff.
         Garnishees moved to set aside the supplemental
judgment. In their initial motion, they moved to set aside
the judgment under ORCP 71 B(1)(a) for excusable neglect.
See ORCP 71 B(1)(a) (allowing the trial court to relieve a
party from a judgment based on “mistake, inadvertence,
surprise, or excusable neglect”). In their reply brief and at
hearing, with the court’s approval, they further moved to
set aside the judgment as void under ORCP 71 B(1)(d). See
ORCP 71 B(1)(d) (allowing relief from a void judgment).
         Regarding voidness, garnishees argued that, under
ORS 18.652(1), the delivery of the writs of garnishment was
not legally effective, because garnishees did not sign for the
certified mail and never received it. Garnishees pointed out
that the return receipts were signed with a somewhat illegi-
ble name that starts with “K” and is not the name of anyone
in their household. The receipts indicate that the delivery
was “received by” K, with a checked box identifying K as
“agent.” Garnishees denied ever receiving the writs and
offered evidence that they were both at work at the time of
the certified mail delivery. Garnishees raised the possibility
that defendant, who lives with them, could have intercepted
434                                    Guest v. Mannenbach

the mail. In any event, they denied receiving it. Garnishees
argued that the writs were not “delivered” under ORS
18.652(1) and that the supplemental judgment was therefore
void and should be set aside.
         Plaintiff opposed the motion. As to voidness, he
argued that ORS 18.652(1) does not require the garnishee
to personally sign for certified mail delivery. The signed
return receipts established that the writs were delivered to
garnishees’ home, which plaintiff maintained was all that
was necessary for effective delivery. Plaintiff acknowledged
that it was unknown who signed for the delivery. He sug-
gested that it was likely the USPS mail carrier, because
USPS modified its practices during the COVID-19 pandemic
to allow for social distancing, including permitting mail car-
riers to sign delivery receipts. In plaintiff’s view, however,
it did not matter who signed the receipts; all that mattered
was that the writs were confirmed delivered to garnishees’
home address.
        The trial court denied the motion to set aside.
Garnishees appeal, assigning error to the denial of the
motion to set aside the judgment as void. They do not chal-
lenge the denial of their motion to set aside the judgment for
excusable neglect.
                         ANALYSIS
         The issue before us on appeal comes down to whether
the writs of garnishment were “delivered” to garnishees
under ORS 18.652(1). We understand garnishees to advance
two slightly different arguments. First, they argue that ORS
18.652(1) requires that the garnishee personally sign for the
certified mail, which they did not. Second, they argue that,
even if someone else can sign for it, ORS 18.652(1) requires
actual receipt by the garnishee, and actual receipt did not
occur. Plaintiff responds that the statute does not require
that the garnishee personally sign for the certified mail, or
that actual receipt be proved, for delivery to be effective.
         We review issues of statutory construction for legal
error. State v. Olive, 

, 

 (2013).
We seek to ascertain the enacting legislature’s intent by
examining the disputed provision’s text and context, as well
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as any helpful legislative history of which we are aware.
State v. Gaines, 

, 

 (2009).
Text and context “must be given primary weight in the
analysis,” as only the text “receives the consideration and
approval of a majority of the members of the legislature,”
and “[t]he formal requirements of lawmaking produce the
best source from which to discern the legislature’s intent.”

.
        The garnishment process begins with the delivery
of a writ of garnishment, a procedure governed by ORS
18.652. ORS 18.652(1) provides:
      “A writ of garnishment may be delivered to the gar-
   nishee personally or by certified mail, return receipt
   requested. Delivery is effective upon receipt of the writ
   by the garnishee. If the garnishee refuses to accept deliv-
   ery by certified mail, the garnishor may attempt personal
   delivery, but the garnishor must have a new writ issued in
   order to claim additional delivery fees.”
         On its face, ORS 18.652(1) allows for delivery of
the writ to the garnishee “by certified mail, return receipt
requested,” as an alternative to personal delivery. The first
issue we consider is what the legislature would have under-
stood that phrase to mean in 2001, when it enacted ORS
18.652. See Or Laws 2001, ch 249, § 17. Then, as now, “certi-
fied mail, return receipt requested,” had a particular mean-
ing. See Zimmerman v. Allstate Property and Casualty Ins.,

, 

 (2014) (explaining that when
terms have a specialized meaning, “we assume that the leg-
islature used the term consistently with that specialized
meaning”).
         Under USPS regulations, “certified mail” is a service
that “provides the sender with a mailing receipt,” i.e., proof
of mailing. US Postal Service, Domestic Mail Manual, No.
55, § S912 (1.1) (2000); see also 

 (2022) (incor-
porating the mailing standards of the USPS Domestic Mail
Manual). “Return receipt service” and “restricted delivery
service” are additional services that may be combined with
certified mail service. Domestic Mail Manual, § S912 (1.4).
“Return receipt service” provides the sender with a “veri-
fied delivery receipt,” i.e., proof of delivery. Id. “Restricted
436                                     Guest v. Mannenbach

delivery service permits a mailer to direct delivery only to
the addressee or addressee’s authorized agent.” Id. § S916
(1.1) (emphasis added); see also id. § S916 (3.1) (with limited
exceptions, “[m]ail marked ‘Restricted Delivery’ is delivered
only to the addressee or the person authorized in writing as
the addressee’s agent to receive mail”).
         The legislature chose to allow for delivery of a writ
of garnishment by “certified mail, return receipt requested.”
ORS 18.652(1). In doing so, the legislature would have
understood that the garnishor would obtain both proof of
mailing (certified mail) and proof of delivery (return receipt),
but that the mail would not necessarily be delivered to the
garnishee personally and that someone else at the garnish-
ee’s address could sign for it. Garnishees’ proposed construc-
tion would seem to require us to disregard that legislative
choice and add words to the statute. See ORS 174.010 (“In
the construction of a statute, the office of the judge is sim-
ply to ascertain and declare what is, in terms or substance,
contained therein, not to insert what has been omitted,
or to omit what has been inserted * * *.”). It would seem to
require us to read “certified mail, return receipt requested,”
ORS 18.652(1), as meaning “certified mail, return receipt
requested, restricted delivery,” which is not what the statute
says.
         Garnishees argue, however, that the legislature did
include language to impose a requirement that the gar-
nishee sign for the certified mail, or at least that the gar-
nishee actually receive it. They point to the second sentence
of ORS 18.652(1), which states, “Delivery is effective upon
receipt of the writ by the garnishee.” They argue that that
means that delivery is effective only upon actual receipt by
the garnishee, as evidenced by the garnishee’s signature on
the receipt. Garnishees further argue that the third sentence
of ORS 18.652(1), which applies “[i]f the garnishee refuses to
accept delivery by certified mail,” would be unnecessary if
delivery could be achieved by simply having someone other
than the garnishee sign for the certified mail delivery.
        We conclude that ORS 18.652(1) does not impose
a requirement that the garnishee personally sign for the
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certified mail delivery. The statutory text is devoid of a
personal-signature requirement. Moreover, the legislature
knows well how to draft such a requirement when it wants
to put that limitation on service. For example, ORS 46.445(3)
allows for service of a small claim notice by certified mail to
the defendant’s last-known mailing address and requires
that “[t]he envelope shall be marked with the words ‘Deliver
to Addressee Only’ and ‘Return Receipt Requested.’ ” ORCP
7 D(3)(a)(i) allows a complaint to be served on an individ-
ual defendant by certified, registered, or express mail with
return receipt requested, but it requires that “the defen-
dant or other person authorized to receive service signs a
receipt for the certified, registered, or express mailing,” and
it provides that delivery is complete when “the defendant”
signs the receipt. ORCP 55 B(2)(c)(iii) allows mail service of
a subpoena in some circumstances, and it imposes require-
ments for “valid” service, including that “the witness or, if
applicable, the witness’s parent, guardian, or guardian ad
litem, signed the receipt more than 3 days before the date to
appear and testify.”

         Indeed, the legislature has long been on notice that,
if it wants to impose a personal-signature requirement
attendant to certified mail, it must do so expressly. In State
v. Gartzke, 

, 

 (1978), the sole
issue on appeal was whether the defendant had “received
notice” of the suspension of his driver’s license as required
by a particular statute. The statute allowed the Motor
Vehicle Division to send a suspension notice by “certified
mail, return receipt requested.” 

 (discussing former ORS
482.570 (1974), amended by Or Laws 1975, ch 451, § 148,
repealed by Or Laws 1983, ch 338, § 978). The department
mailed the suspension notice to defendant at his parents’
address, which was the address on file for him, and his
father signed for the delivery. Id. The defendant contended
that the notice was invalid because he did not sign for it
himself and did not receive it. Id. We disagreed, concluding
that the statute “did not require that the receipt be signed
by the addressee, but merely required that the receipt be
returned signed.” Id. at 153-54. “When the required proce-
dure is followed, proof of it alone is sufficient evidence upon
438                                                 Guest v. Mannenbach

which to base a finding that defendant received notice of the
suspension[.]” Id. at 154.1
         Similarly, here, by its plain language, ORS 18.652(1)
requires only that the writ be sent to the garnishee by cer-
tified mail, return receipt requested; that is, it requires only
that the receipt be returned signed, not that it be returned
signed by the garnishee personally. The second sentence of
ORS 18.652(1) (“Delivery is effective upon receipt of the writ
by the garnishee.”) potentially might be read to impose an
actual-receipt requirement—a separate argument that we
address shortly—but it cannot be read to impose a personal-
signature requirement. As for the third sentence of ORS
18.652(1) (“If the garnishee refuses to accept delivery by
certified mail, the garnishor may attempt personal delivery,
but the garnishor must have a new writ issued in order to
claim additional delivery fees.”), we disagree with garnish-
ees that it serves no purpose absent a personal-signature
requirement. The third sentence contemplates a scenario in
which the garnishee answers the door and refuses to accept
delivery, and it addresses when additional delivery fees for
personal service can be obtained. The fact that, sometimes,
another person will answer the door or otherwise be present
to sign for delivery does not defeat the purpose of the third
sentence.
         Having concluded that ORS 18.652(1) does not
require that the certified mail receipt be signed by the gar-
nishee personally, we next consider whether the statute
requires actual receipt by the garnishee for delivery to be
effective. Garnishees argue that, even if someone other than
the garnishee can sign for the certified mail, the statute
requires actual receipt by the garnishee for delivery to be
effective. For that argument, they again rely on the second
sentence of ORS 18.652(1), which states, “Delivery is effec-
tive upon receipt of the writ by the garnishee.”
       We are unpersuaded that the legislature intended
to impose an actual-receipt requirement for delivery of a

    1
      As an aside, we also noted that the legislature had recently amended the
statute to add a personal signature requirement. Gartzke, 

 n 1
(noting that the statute was amended in 1975 to require that the notice be mailed
“by certified mail restricted delivery, return receipt requested” (emphasis added)).
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writ of garnishment to be effective under ORS 18.652(1). It
would be highly unusual for a service requirement to turn
on actual receipt. Such an approach would virtually guar-
antee factual disputes. For that and other reasons, Oregon
service rules tend to be written in terms of what the person
trying to effect service must do, not in terms of the end goal
of notice. See Davis Wright Tremaine, LLP v. Menken, 

, 

 (2002) (“[L]egally, under Oregon’s
sufficiency of service rules and related jurisprudence, actual
notice is, essentially, irrelevant. Thus, ORCP 7 D(1) focuses
not on the defendant’s subjective notice but, instead, on
whether the plaintiff’s conduct was objectively, reasonably
calculated to achieve the necessary end.” (Internal citations
omitted.)). If the legislature wanted to ensure actual receipt,
it is much more likely that it would have added a restricted-
delivery requirement to ORS 18.652(1) than imposed an
actual-receipt service standard.
         Moreover, if for some reason the legislature did
decide to impose an actual-receipt service standard for
writs of garnishment, logic dictates that it would have sim-
ply provided that any means of delivery resulting in actual
receipt was permitted. If that was the intended standard, it
would make little sense to identify two specific methods for
the garnishor to use, including one that does not guarantee
actual receipt, and then rely on a sentence about when deliv-
ery is “effective” to convey the service standard.
          On the whole, in its statutory context, we agree
with plaintiff that the second sentence of ORS 18.652(1)
(“Delivery is effective upon receipt of the writ by the gar-
nishee.”) is intended to convey that service by certified mail,
return receipt requested, is effective on the date of delivery—
i.e., the date that the garnishee actually or constructively
receives the writ by certified mail—not any other date. That
is, as relevant to calculating days from service, it is the
delivery date that controls, rather than the mailing date,
the first attempted delivery date, the date that the delivery
receipt was returned, or any other possible date. Cf. ORCP
7 D(2)(d)(ii) (containing various provisions as to when ser-
vice is “complete” for time-calculation purposes). Although
the way that the statute is written creates some ambigu-
ity, we ultimately conclude that that is what the legislature
440                                    Guest v. Mannenbach

intended when it drafted ORS 18.652(1), rather than intend-
ing “receipt” to refer to the moment when the garnishee per-
sonally takes the writ in hand.
          Finally, in the trial court, there was much discus-
sion of “presumptions.” That discussion originated with and
mostly related to garnishees’ alternative argument for set
aside based on their own excusable neglect. The presump-
tion that a letter mailed in the normal course was received
by the addressee is an evidentiary presumption that is rele-
vant to a motion to set aside for excusable neglect. See OEC
311(1)(q) (listing presumptions that are generally applicable
in civil and criminal actions, suits, and proceedings, includ-
ing that “[a] letter duly directed and mailed was received in
the regular course of the mail”); Van Dyke v. Varsity Club,
Inc., 

, 

, rev den, 

(1990) (affirming the denial of a motion to set aside a default
judgment for excusable neglect, where the party’s trial
counsel claimed not to have received the trial notice, but it
was mailed to the correct address and was not returned as
undelivered).
         The discussion of presumptions has continued on
appeal, however, with reference to both ORCP 7 and OEC
311(1)(q), even though excusable neglect is not at issue on
appeal. We therefore briefly address the issue of presump-
tions. The evidentiary presumption in OEC 311(1)(q) is not
relevant to whether a writ of garnishment was delivered
under ORS 18.652(1). Nor are the “presumptively adequate”
service methods in ORCP 7 relevant to whether a writ of
garnishment was delivered under ORS 18.652(1). ORCP 7
requires service of a complaint and summons to be made
“in any manner reasonably calculated, under all the circum-
stances, to apprise the defendant of the existence and pen-
dency of the action and to afford a reasonable opportunity to
appear and defend.” ORCP 7 D(1). The rule then describes
specific service methods that we have deemed “presump-
tively adequate” to satisfy that general standard. Davis
Wright Tremaine, LLP, 

; see also Baker v.
Foy, 

, 

 (1990) (adopting two-
step methodology to assess the adequacy of service under
ORCP 7 D, including recognizing “presumptively adequate”
service methods). If service is made by a “presumptively
Cite as 

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adequate” method, then service will be considered effective,
unless the defendant overcomes the presumption. Davis
Wright Tremaine, LLP, 

.
          ORCP 7 has no bearing on the delivery of a writ of
garnishment, which is governed by ORS 18.652(1). ORCP 7
also is written very differently from ORS 18.652(1). ORCP 7
states a general standard for service of summons, then iden-
tifies specific service methods that the courts treat as “pre-
sumptively adequate” to meet that general standard, sub-
ject to rebuttal by the defendant, with the ultimate question
being whether the general standard is met. Baker, 

; Davis Wright Tremaine, LLP, 

. By
contrast, ORS 18.652(1) simply provides for two alternative
delivery options: (1) personal delivery, and (2) certified mail,
return receipt requested. There is no general standard that
those delivery methods are to be tested against. Those deliv-
ery methods are the standard.
         In sum, the trial court did not err in denying gar-
nishees’ motion to set aside the supplemental judgment
under ORCP 71 B(1)(d) as void. ORS 18.652(1) permits a
writ of garnishment to be delivered either personally or
by certified mail, return receipt requested. Either method
constitutes delivery to the garnishee. It is not necessary for
effective delivery that the garnishee personally sign for the
certified mail. Also, although actual notice may be relevant
to excusable neglect, actual receipt is not required for effec-
tive delivery.2
           Affirmed.


    2
      Whether a writ of garnishment was “delivered” under ORS 18.652(1) goes
to whether the judgment is void and therefore must be set aside. See Wells Fargo
Bank, N.A. v. Jasper, 

, 

 (2017) (“A void judg-
ment must be set aside under ORCP 71 B(1)(d); the court has no discretion in the
matter.”). By contrast, excusable neglect focuses on the garnishee’s conduct and
allows the trial court some discretion whether to set aside under ORCP 71 B(1)(a).
See PGE v. Ebasco Services, Inc., 

, 

 (2014) (“In
determining whether a party’s failure to appear was the product of excusable
neglect, the overarching issue is not whether the service agent acted reasonably,
but whether the defendant acted reasonably.” (Emphases omitted.)); Much v. Doe,

, 

, rev den, 

 (2021) (recognizing that a
court has discretion in deciding whether to set aside a judgment for excusable
neglect).